Reeves v. Schreiner et al., (2007) 306 Sask.R. 308 (QB)

• Judge: Koch, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 10, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 306 Sask.R. 308 (QB);2007 SKQB 285

Reeves v. Schreiner (2007), 306 Sask.R. 308 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. OC.036

Jessi Anne Reeves (applicant) v. Eugene Schreiner, Eric Schreiner and Walter Peterson (respondents)

(2006 Q.B.G. No. 1904; 2007 SKQB 285)

Indexed As: Reeves v. Schreiner et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Koch, J.

August 10, 2007.

Summary:

A testator, who died in 1991, left a $5,000 bequest to each of his surviving great grandchildren. The applicant, when she turned 18 years old, sought to claim the bequest. The executors refused, alleging that the applicant was not a biological great grandchild.

The Saskatchewan Court of Queen's Bench held that the applicant was entitled to the bequest, the interest generated on it and an accounting.

Wills - Topic 5002

Construction - General principles - Time that will speaks - A testator, who died in 1991, left a $5,000 bequest to each of his surviving great grandchildren - Reeves, when she turned 18 years old, sought to claim the bequest - The executors refused, alleging that Reeves was not a biological great grandchild - When Reeves was born in 1988, her mother was married to and cohabiting with Schreiner (testator's grandson) - Schreiner alleged that he believed that Reeves was his biological daughter until four years after her birth until he discovered information that indicated that Reeves was conceived during a period of time when he and the mother were separated - The Saskatchewan Court of Queen's Bench held that Reeves was entitled to the bequest - It had to be presumed that when the testator made his will in 1988, he made it in the context of the law as it then was - At that time, s. 33(b) of the Wills Act provided that, in the construction of a will, except when a contrary intention appeared by the will, an illegitimate child shared in the estate as if he were the legitimate child of his father if a court of competent jurisdiction was satisfied (i) that during the father's lifetime, the father publicly or otherwise acknowledged that he was the father of the child, or (ii) that at the time of child's birth the father was living with the child's mother as her husband and that after the child's birth the father seemed to have accepted the child as his own - References in s. 33 to a child applied to a grandchild - At the time the testator made his will, Schreiner, by his own acts and conduct, placed himself squarely within both (i) and (ii) of s. 33(b) and, in the absence of evidence to the contrary, knowledge of that should be imputed to the testator - It had to be presumed that when the testator made his will, he intended to include persons within the framework of s. 33(b) who would not necessarily be his biological progeny - Otherwise, he would have stated his contrary intention as s. 33 required.

Wills - Topic 7008

Construction - Persons entitled to take - Interpretation of particular words or phrases - "Grandchildren" - [See Wills - Topic 5002 ].

Cases Noticed:

Haidl et al. v. Sacher et al. (1979), 2 Sask.R. 93; 106 D.L.R.(3d) 360 (C.A.), refd to. [para. 11].

Smith Estate, Re, [2004] 7 W.W.R. 516; 240 Sask.R. 258; 2003 SKQB 361, refd to. [para. 11].

Darichuk Estate, Re, [1986] 5 W.W.R. 542; 50 Sask.R. 8 (Surr. Ct.), revd. in part [1988] 6 W.W.R. 659 (C.A.), refd to. [para. 13].

Mackay v. Nagle, Hunter and Hovey (1988), 91 N.B.R.(2d) 155; 232 A.P.R. 155 (T.D.), refd to. [para. 17].

Jobin v. Jobin Estate, [1992] 6 W.W.R. 668; 82 Man.R.(2d) 168 (Q.B.), refd to. [para. 17].

Batten Estate, Re (2002), 212 Nfld. & P.E.I.R. 348; 637 A.P.R. 348 (N.L.T.D.), refd to. [para. 17].

Pearce v. Hubic Estate (1992), 104 Sask.R. 182; 95 D.L.R.(4th) 140 (Q.B.), refd to. [para. 18].

Statutes Noticed:

Wills Act, S.S. 1978, c. W-14, sect. 33(b) [para. 12].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 2, pp. 42, 43 [para. 17].

Counsel:

Laura P. Barrett, for the applicant;

Patrick H. Loran, for the respondents.

This application was heard by Koch, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on August 10, 2007.